A motion in limine is an excellent tool that a trial attorney should use to eliminate improper matters from being mentioned or introduced during a jury trial. The motion in limine may be considered to exclude improper evidence or arguments. This motion is under-utilized and should be incorporated as an important aspect of your final trial preparation.
A motion in limine is usually based upon the analysis found in Fla. Stat. §90.403 which states: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” If you anticipate that your opposition will present unfair, illegal, or repetitive evidence or arguments at trial, you should prepare a motion in limine to prevent this from occurring. Motions in limine may also be used to prevent the introduction of inadmissible evidence at trial, such as hearsay, parole evidence violations, privileged information, and opinions which lack a proper foundation. A motion in limine may also be used to prevent the opposition from offering embarrassing or humiliating evidence about your client that has little to do with the case. For example, evidence regarding sexual preference was properly excluded in Roby v. Kingsley, 492 So.2d 789 (Fla. 1st DCA 1986). Similarly, evidence regarding a Plaintiff’s prior drug use may be excluded as a result of a motion in limine. See Clausell v. Buckney, 475 So.2d 1023 (Fla. 1st DCA 1985); Botte v. Pomeroy, 497 So.2d 1275 (Fla. 4th DCA 1986).
Motions in limine should be prepared well before trial and should be fully briefed. Make sure to argue the motion before the objectionable comments are made or the evidence is shown. Once the illegally prejudicial matter is brought before the jury, no instruction from the court will remove its harmful effect. Make your motions specific about what you seek to exclude. A motion in limine should be very precise. Set out the anticipated improper argument or evidence and request that no such evidence and/or argument be allowed. You should allege that it is likely that the opposing counsel will attempt to offer the illegal evidence or improper argument. Support your motion with sufficient facts to establish that the challenged matter will inflame the passion, prejudice, hostility, or sympathy of the jury, cause confusion, or consume an inordinate amount of time. You should also argue that if the motion in limine is granted, it will promote judicial economy, since it will shorten the trial and avoid error from being committed.
If the trial court denies the motion in limine without prejudice and states that he or she will rule on the matter as it comes up in trial, remember to request that the issue be brought up before the court outside the presence of the jury. This allows the court an opportunity to rule on the motion before the jury hears or sees that which you are attempting to exclude. If the trial court denies the motion in limine, remember to object to the evidence or argument you were attempting to exclude as it is introduced. Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981). The denial of the motion in limine alone will not preserve the matter for appeal. In order to properly preserve the issue for appellate review, you must also object to the improper argument or evidence every time it is mentioned in court. Id. If the motion in limine is granted, the party that was attempting to admit the excluded evidence or argument should proffer it during trial, so as to preserve the matter for appellate review. Id. The granting of the motion in limine alone is not reversible error.
The motion in limine should be made prior to trial. Consider raising it at the pretrial conference, after discovery has been taken. Nevertheless, a motion in limine may be raised during the trial itself. You should raise a motion in limine any time that you believe that opposing counsel will make an improper argument, or will attempt to offer evidence that is clearly illegal. If a motion in limine is granted, then the opposing party, counsel, and witnesses are placed on formal notice not to make any mention of the excluded matters. It is opposing counsel’s responsibility to remind his or her client and witnesses not to touch upon the subjects excluded in limine. Violation of the order may result in a mistrial or reversible error. Kreitz v. Thomas, 422 So.2d 1051 (Fla. 4th DCA 1982). The court has the discretion to decide if a violation of a ruling in limine requires a mistrial. Tate v. Gray, 292 So.2d 618 (Fla. 2d DCA 1974).
A motion in limine is one of the most effective defensive weapons that a trial attorney possesses to avoid improper evidence and arguments from reaching the jury. The motion is under-utilized by most trial attorneys. This important asset should be used any time you anticipate that opposing counsel will attempt to introduce improper or illegal evidence or make unfairly prejudicial arguments to the jury. The motion in limine is an efficient, effective, and practical way of testing whether the trial court will allow the challenged evidence or arguments to be made before it is offered to the jury. You should take advantage of the opportunity to exclude dangerous evidence or plan around it by making good use of the motion in limine.